The plan was proposed by Chief Justice James Spigelman in his address to state’s legal profession to mark the opening of the law term. It has drawn some criticism for its idea of secret meetings, but the judge has touted the proposed process as a means to “improve both the jury decision-making process and the judicial sentencing process, as well as enhancing public confidence in the administration of criminal justice”.

Spigelman suggested an in camera consultation process that would be protected by secrecy provisions. Under the plan, “the trial judge discusses relevant issues with the jury after evidence and submissions on sentence and prior to determining sentence”.

Possibly anticipating criticism of the proposal, Spigelman acknowledged in his speech that difficult issues could arise when a system is established that intrudes on the secrecy of the jury deliberation process. But, he said, “the present secrecy rule protects the jury and remains fundamental to our system”.

He said, however, that senior judges have suggested that the immunity from scrutiny that juries currently enjoy will eventually affect public confidence in the jury system. He added that sometimes the secrecy of juries’ deliberation is subject to criticism on the basis that it may conceal miscarriages of justice.

The legislative scheme for the implementation of Spigelman’s proposal, however, would have to regulate the conflicting principle involved, requiring careful investigation so that the appropriate balance is maintained.

Spigelman referred to a tradition in the United States whereby many states had juries that imposed sentences. Now only half a dozen states continue this tradition, but there have been recent calls for its return, he said. New South Wales, however, should not adopt something of this sort, as “the scope of relevant considerations is such that sentencing requires the synthesis of a range of incommensurable factors”. This could not be done by a group without a process of compromise, he said, and ultimately a judge must decide where this balance should lie.

Such a process would first need considerable “working out”, Spigelman said, suggesting that this may be done through the Law Reform Commission. Legislation should authorise the adoption of the system on a trial basis only, he said, as was done with the system of Sentence Indication Hearings a few years ago. Although this looked good on paper, Spigelman said, it was eventually abandoned.

According to Brisbane-based criminal defence law firm Ryan and Bosscher Lawyers, the NSW Chief Justice’s plan was “highly risky” and “cut to the core of a basic tenet of justice”. Lawyer Michael Bosscher argued that Queensland should resist any idea of jurors advising trial judges on sentences.

Juries already play an important role in the justice system, said Bosscher, but jurors are not legal experts and “should not be encouraged to exceed their primary role — to determine whether the Crown has established guilt”. Bosscher said juries are used to assess whether a person is guilty beyond reasonable doubt, and argued “it would not serve the best interests of fair justice if sentencing was… influenced by people whose knowledge of the justice system was limited to watching crime shows on television”.

He supported comments made by Chief Justice Paul De Jersey, who said that secret meetings between jurors and judges would be unacceptable, and would mean that defence prosecution would be excluded from the meeting.

“Jury service can be stressful to jurors. Involving jurors beyond their present role would only add more stress to their duties. Secret meetings would also inevitably lead to more appeals against conviction,” Bosscher said.